EBW16 v Immigration Assessment Authority

[2017] FCCA 2082

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBW16 v IMMIGRATION ASSESSMENT AUTHORITY & ANOR [2017] FCCA 2082

Catchwords:
MIGRATION – Protection Visa – whether tribunal’s decision affected by jurisdictional error – where no error established in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth) s.7AA

Applicant: EBW16

First Respondent: IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number: BRG 1206 of 2016

Judgment of: Judge Vasta

Hearing date: 28 August 2017

Date of Last Submission: 28 August 2017

Delivered at: Brisbane

Delivered on: 28 August 2017

REPRESENTATION

Counsel for the Applicant: Mr Bataraj

Counsel for the Second Respondent: Ms Wheatley

Solicitors for the Second Respondent: CLAYTON UTZ

ORDERS

1. That the Application filed 23 December 2016 be dismissed.

2. That the Applicant pay the Second Respondent’s costs of and incidental to this proceeding fixed in the sum on $7,206.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 1206 of 2016

EBW16

Applicant

And

IMMIGRATION ASSESSMENT AUTHORITY

First Respondent

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application dated 23 December 2016, the Applicant, EBW16, has asked this Court to review a decision of the Immigration Assessment Authority (“the IAA”) which itself affirmed an earlier decision of a delegate for the Minister not to grant EBW16 a protection visa. 

2. In short, the Applicant is a Tamil from the Batticaloa District of Eastern Province in Sri Lanka.  During the 2012 elections, he said that he campaigned for the TNA, a Tamil party.  He claimed that from July to September 2012, he was active in distributing leaflets, canvassing voters and organising political meetings. 

3. He said that on 3 September 2012, a group of masked men came to the family home and assaulted him, and he was kicked and punched and dragged out into the street and was threatened that he would be killed if he did not stop working for the TNA. 

4. He said that his parents and sister were assaulted when they came to his aid.  He said that there were other colleagues from the TNA that were assaulted at their homes in a similar manner.  The next day, he said that he left to stay with an uncle in the city of Batticaloa and he remained hiding there until he left Sri Lanka in November of 2012. 

5. After he left the family home, he reported that other people had come to the house on two or three occasions searching for him and that since his departure, the family home has been visited on several occasions by people who have been asking about the Applicant and threatening the family.

6. The Applicant fears that if he returns to Sri Lanka, he will be shot and killed by political opponents of the TNA, and that he would work for the TNA again in the future which would mean that he would come to more harm. 

7. And he fears that as a failed asylum seeker, he could be mistreated on return to Sri Lanka, and he cited the council people from his village who have been abducted and killed. He also fears that the LTTE may re-emerge and civil war will start again in Sri Lanka. 

8. These claims were thoroughly looked at by the IAA.  In the end, the IAA made findings to the effect that they accepted that the Applicant did have a low-level connection with the TNA and what he had said about his involvement with the TNA was somewhat exaggerated.

9. Nevertheless, they accepted that there was some involvement; that he would have been harassed in some respects for that activity, but again, the evidence that he gave was, to use the vernacular, gilding the lily, in that he has exaggerated this point. 

10. The IAA did not accept the degree to which the Applicant had been harmed.  The IAA also looked at quite a deal of country information. After looking at the reports from Human Rights Watch in the US Department of State as well as the UNHCR guidelines, the IAA concluded that since the election of the Sirisena government in 2015, that what usually happens to persons who are failed asylum seekers upon their return to the country is that they are charged with illegally leaving the country and they are usually fined.  They are sometimes kept in prison for a period of about two days whilst bail measures are sorted out. 

11. Having come to those conclusions, it is not surprising that the IAA found that the Applicant did not meet the Refugee Convention criteria, nor did he meet the complementary protection criteria. 

12. In his amended application to this Court to review the decision, the Applicant listed four grounds.

13. The first ground was

    “1. The First Respondent had denied the Applicant fair process by failing to consider the Applicant’s statutory declarations of 25 February 2016…”

14. The Applicant gave to the IAA a letter where an MP had suggested that the Applicant had been a person who had done some tireless work for the TNA during the elections and that the Applicant was assaulted for his troubles.  At paragraph 14, the IAA said this:

    “At the TPB interview, the delegate of the Minister asked the applicant how he knew the MP.  The applicant initially responded that he has always known him.  When asked for further details, the applicant stated that the MP came to the temple near his home and that he had seen him attend religious activities at the temple.  When asked how he became involved as a TNA supporter, the applicant stated he did so after he heard the MP speak as he wanted to help him.  From the applicant’s account, there is no indication of any personal or close connection to the MP.  There is no indication that he knows him personally, either socially or through their political activities or has a personal connection to him such that the MP would have firsthand knowledge of the applicant’s personal circumstances.”

15. The IAA gave the letter no weight.  In the grounds, and well-argued by Mr Bataraj, who appears for the Applicant, the claim was made that the letter should have been translated by an accredited translator.  It was submitted that the letter was critical in the support of the Applicant’s claim, in that it verifies the Applicant’s statement that he was involved in the election process. 

16. The problem is that it really is a matter for the Applicant to translate the letter, but whether it was by an accredited translator or not, the IAA treated the letter as having the contents that the Applicant had said it had. 

17. But to say that the letter was critical in support of the Applicant’s claim in that it verifies the Applicant’s statement he was involved in the election process is not strictly correct.  Firstly, the IAA accepted that he was involved in the election process but they accepted that he was involved at a low level.  The second thing is that the letter cannot verify much because it really is coming from a source that has no actual personal knowledge of the Applicant and so whether it was translated or not, it does not make that aspect any better for the Applicant. 

18. In my view, it does not seem just on that point that there has been any error in reasoning by the IAA. 

19. The second part of that ground was that the First Respondent, IAA, never questioned the Applicant on the truthfulness of his statements, referring to this assault in September 2012, that the Applicant claimed had occurred.  There was no need for the IAA to do that because in the end, it looked at the whole of the aspect not just this particular letter as to whether or not this assault occurred.  The MP himself could not have known whether this assault occurred or not and would simply be revealing some hearsay material. 

20. Therefore, I do not find that there is any substance in Ground One.

21. Ground Two is

    “2. The First Respondent erred in law by failing to take into consideration information critical to the claims of the Applicant in a letter dated 6 November 2016 sent by him in response to the request by the First Respondent for information that will constitute exception circumstances…”. 

22. Now, it is trite to say that the IAA can only consider the material that was before the delegate.  It can look at new material but only if there are exceptional circumstances to look at that material.

23. In this case, the Applicant was before the IAA and had given the IAA all its material.  The IAA had actually asked a number of questions about the LTTE and whether there had been any involvement. 

24. The Applicant had previously told the delegate that there was no LTTE involvement.  After the delegate had made the decision and before the IAA had commenced the hearing, the IAA received a statement from the Applicant which he said that extended family members were involved with the LTTE and that his brother was abducted by the LTTE in 2004. 

25. The Applicant said he did not give a full account of this involvement in his application or at his interview with the delegate because he was fearful of being deported to Sri Lanka if he mentioned his family’s involvement with the LTTE.

26. The statement to the IAA also advised that the agent who assisted the Applicant to travel to Australia had been arrested and that officers from the criminal investigation department of Sri Lanka had told the Applicant’s parents that the Applicant would be also arrested on return. 

27. All of this information was actually available to the Applicant at the time of the interviews and at the time of his own application for the protection visa.  He simply chose not to give that material to the delegate. 

28. He gave an excuse that he thought that that would be the end of his application if he mentioned it.  However, there is no explanation as to why that belief has now changed.  Given that the delegate had said to the Applicant during his interview that it was very important that the Applicant provide accurate information, and the Applicant was asked a number of times if there were any false or misleading information that he had given in his application or before the delegate, and the Applicant had stated that there was not, there could be no rational explanation for this material appearing before the IAA. 

29. It does seem to me that it would have been a very bizarre finding by the IAA for it to have found that there were exceptional circumstances that had been established that would militate towards the IAA looking at this new material. 

30. Mr Bataraj, quite properly in his duty as counsel, has more or less admitted that this is correct and not pushed this point.  It was well and truly open for the IAA to come to the conclusion that exceptional circumstances did not exist. 

31. I find, therefore, that there is no merit in Ground two.

32. Ground Three is

    “3. The Minister erred in not taking into consideration relevant Country information in making the decision and thereby failed to consider the Applicant under the Complementary Protection Provisions given his statutory declaration of February 2016

    Particulars: The Applicant had provided reference of articles that supported his application. None of these articles were referred, commented upon or disputed by the 1^st Respondent in making the adverse decision. 

    The material that the applicant provided was country information and did talk about how things were back in 2012. 

33. This information, about Sri Lanka in 2012, may go to the experiences of the Applicant.  However, what it is more important is to look at what would happen to the Applicant if he were to be returned to Sri Lanka?  The information, as I have already alluded to, is that he would be, at most, jailed for two days upon his return whilst bail niceties were sorted out, but most probably he would simply be fined there and then and a payment plan entered into and he would be free to go.

34. That is the country information that is recent, relevant and credible.  The information that the Applicant was putting before the IAA had none of those attributes and really, did not do anything that would suggest that the country information relied upon by the IAA was not the sort of information that ought to have been relied upon. 

35. Therefore, I do not find that there is any substance in Ground Three either.

36. The last ground, Ground Four, is that

    “4. The 1st Respondent erred and denied fair process in assessing the Applicant’s credibility purely by testing his memory of knowledge of specific data rather than the events which he had experienced and which would have more knowledge of.  The 1^st Respondent failed to take into consideration of the trauma experienced by the Applicant which would have a negative impact on data memory. 

37. Really, this ground is a “catch-all” type ground that somehow presupposes that delegates of the Minister and either members of the IAA or the AAT do not take sufficient consideration of the life that persons such as the Applicant have lived. 

38. If one were to objectively think about what is it that gets a person to absolutely leave everything that they have done, everything that they have experienced, get on a very unseaworthy vessel to take a dangerous trip from Sri Lanka to Australia and to have survived such a trip, such an experience is beyond the experience of members of the AAT, the IAA or even delegates of the Minister. 

39. Therefore, it is submitted that it is very difficult for those decision-makers to be able to really have a full knowledge and ability to assess how it is that someone such as the Applicant should behave when they are questioned by persons in authority.

40. The submission really is that because of everything that the Applicant has experienced that there has to be some care given when assessing the answers given to questions by persons such as the Applicant. 

41. That submission may have some merit to it. However, that is not really to the point. The fact is that part 7AA has been enacted, as have other parts of the Migration Act 1958 (Cth) (“the Act”), but that specific part sets up and establishes its own procedures for looking at matters such as this.

42. The rules for natural justice are codified in this legislation and, as long as the legislation has been complied with, then the hearing and the decision is deemed to have been fair and just according to the statutes. 

43. Whilst that conclusion may be able to be criticised by other people, that is not to the point.  The point is that the legislature has established the procedures.  The procedures have been complied with; therefore, it is fair and just. 

44. That means that there is no substance in Ground Four. 

45. Having a look at the whole of the decision, I cannot discern any jurisdictional error.  The result of that is that I dismiss the application and I order that the Applicant pay the costs of the Minister fixed in the sum of $7206. 

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 4 October 2017